Tuesday, August 31, 2010

The International Criminal Court’s first trial is once again on the verge of coming to an abrupt end before the completion of the proceedings. The defendant, Thomas Lubanga has again been ordered released, and the Office of the Prosecutor (“OTP”) is again appealing that order. (Prior IntLawGrrls posts) It’s déjà vu all over again – and why? For the second time, because of the controversial role of intermediaries in building the prosecution’s case.What’s all the hubbub about? IntLawGrrl guest/alumna Yvonne McDermott's earlier post provides the details, but the big picture is this: the OTP has been using third parties to assist it in conducting its investigation of the situation in the Democratic Republic of Congo (“DRC”). These third party intermediaries include organizations like MONUC (the UN Mission in Congo) (emblem below left) that have long been involved in investigating the atrocities that have occurred in the conflict there. In June 2009, the OTP was unable to disclose evidence as ordered by the court because of confidentiality agreements with the third parties who provided the evidence; now, the OTP has not identified an intermediary whom witnesses have claimed encouraged them to provide false testimony.In my recent article,Outsourcing Investigations, I assessed the benefits and risks that come with using third parties as intermediaries in an international criminal investigation.On the one hand, it makes enormous sense for the OTP to make use of the contacts that MONUC and other IGOs and NGOs already have with victims and witnesses in the DRC and to take account of the evidence they have already uncovered. These organizations know the country, the situation and the involved parties very well. They have already carried out their own investigations and produced their own reports on the war crimes and crimes against humanity that the OTP began investigating far more recently. The OTP is also no competition for MONUC in the size and scope of its investigations, particularly since it has adopted a targeted and sequenced investigations policy that deliberately limits its investigations’ aims and resources. Due to all of these factors, the OTP has relied on the work done by third party intermediaries at a minimum as the basis for selecting the incidents on which it has focused, making initial contact with the witnesses the third parties have already interviewed, and obtaining and reviewing any evidence they have already secured.But this reliance creates problems: problems with reliability, credibility, equality of arms, the right of the defense to confront witnesses, and confidentiality. The Lubanga case has demonstrated that these problems are very real. And the Lubanga case is not a one-off: similar questions have emerged in at least one other DRC case. Unless the OTP radically changes its investigations strategy and the amount of resources it puts into its investigations, it will continue to need intermediaries. But unless the OTP changes its approach to using intermediaries, the problems that have arisen in the Lubanga case are not going to disappear on their own.Accordingly, the OTP needs to develop a more effective set of policies and practices for dealing with intermediaries. At a minimum, it needs to reach agreements with intermediaries in advance that will permit the disclosure of evidence and of sources of evidence that is necessary for the defendant to have a fair trial. In Outsourcing Investigations, I suggest two approaches that could help the OTP maximize the benefits and minimize the risks of using intermediaries:► (1) The OTP could draw experts into its investigations from the UN mission and other IGOs and NGOs operating in the area and/or► (2) The OTP could develop a detailed set of guidelines for intermediaries to follow in carrying out their investigations.By taking either or both of these steps, the OTP could maintain some control over the methods of the investigation and thereby maximize the reliability of the evidence it obtains as well as the transparency of its provenance.

Monday, August 30, 2010

As intlawyers well know, a foundation of contemporary rules regarding the use of force is the Caroline affair.

As posted, U.S.-Britain negotiations more than 170 years ago articulated a concept of "anticipatory self-defense," subject to conditions of necessity and proportionality.

Perhaps less well known is the underlying incident.

Spurring the diplomatic exchange of notes was 1837 unrest in Canada, then a British colony. Anti-British rebels encamped at Navy Island in the middle of the Niagara River, which marks the U.S.-Canada border. Rebel night-raids of Britain's Canadian forts prompted Britain to seize the Caroline, a rebel vessel. They torched it and set it loose; it broke up in the rock-strewn rapids. Eventually, what was left of the Caroline went over the Niagara Falls.

Hence this post-card: photos of those rapids and falls made on a lovely summer Sunday, en route to the 4th Annual International Humanitarian Law Dialogs at Chautauqua, New York, about which more to come.

After three years of delay and "no action" motions in committee, ECOSOC finally granted consultative status to the International Gay and Lesbian Human Rights Commission (IGLHRC) on July 19, 2010. The resolution passed -- by a vote of 23 for, 13 against, 13 abstaining and 5 absent (vote breakdown by country here) -- despite a "no action" decision on the group's application by ECOSOC's Committee on Non-Governmental Organizations in June. A summary of the ECOSOC debate on IGLHRC's consultative status is available here. (Photo: Hossein Alizadeh, IGLHRC’s Middle East and North Africa Program Coordinator) The US government worked hard to achieve this success. After the ECOSOC decision, Ambassador Susan Rice stated that the vote

reaffirmed the Economic and Social Council's commitment to include a diverse range of voices from civil society in the work of the UN. More important, the vote was a significant achievement for all those who work to see the United Nations embody its founding principles and advance the tenets of the Universal Declaration of Human Rights.

Consultative status allows NGOs to place items on the agenda of ECOSOC and its subsidiary bodies; attend meetings; submit written statements and make oral presentations; and be involved in UN international conferences and their preparatory meetings. The vote to grant consultative status to IGLHRC was welcomed by human rights defenders the world over.

As human rights defenders and LGBT people living in countries where homophobic discrimination is a daily reality, we celebrate the accreditation of IGLHRC at the UN.IGLHRC's access to the UN means that we too will have greater access to international human rights mechanisms that can prove invaluable to LGBT people's lives.

- Frank Mugisha, Chairperson of Sexual Minorities Uganda (SMUG), one of 13 NGOs from Uganda to publicly call for IGLHRC to be accredited (see the over 200 NGOs worldwide that signed the petition for accreditation here)

The experience of IGLHRC is a familiar one. The few LGBT NGOs that have consultative status -- just ten in total -- attained it only after ECOSOC disregarded a negative or "no action" recommendation by its Committee on NGOs. Egypt has led the opposition to LGBT NGOs, with a strategy of continually postponing committee decisions on applications. The United Kingdom has been a leader in supporting LGBT NGOs, and has emphasized that disagreement with the policies of an NGO should not mean excluding them.The UK statement during the ECOSOC debate on IGLHRC's application is here; the US statement is here.Just what are the criteria for granting consultative status? Article 71 of the UN Charter provides that ECOSOC "may make suitable arrangements for consultation with non-governmental organizations which are concerned with matters within its competence." ECOSOC resolution 1996/31, which governs consultative status, "confirm[s] the need to take into account the full diversity of the non-governmental organizations at the national, regional and international levels."

To be eligible for consultative status, according to the resolution,

an NGO must be "concerned with matters falling within the competence" of ECOSOC and its subsidiary bodies,"

the group's aims and purposes must be "in conformity with the spirit, purposes and principles" of the UN Charter, and

the NGO must undertake to support the work of the UN and to promote knowledge of its principles and purposes.

It may surprise some to learn that among the NGOs granted consultative status under these guidelines is the National Rifle Association.The lack of guidelines to ensure the objective application of the consultative status requirements has led to criticism of the accrediting process. As this summary of the July ECOSOC session points out, states use the process to withhold or withdraw consultative status from NGOs that criticize them or with whose policies they disagree. This certainly reflects the three-year struggle of IGLHRC to attain consultative status.

International organizations are often disparaged as talking shops. That, among other things, is what they are and requires no apology.

-- Brian Urquhart (right), who began his U.N. career in 1945 and served as Undersecretary-General from 1972 until his retirement in 1986. (photo credit) The quote appears in "Finding the Hidden UN," his well-worth-reading New York Review of Books essay about recent volumes about the United Nations -- including the ones here and here.

By taking up the case of one of its subjects and resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own right — its right to ensure, in the person of its subjects, respect for the rules of international law.

The Pakistan Initial Floods Emergency Response Plan, prepared immediately after the flood, requested $459 million primarily for food, water, sanitation and hygiene, health, shelter and other non-food items. The Financial Tracking Service (FTS) reports that $274 million has been raised, thus reaching a coverage of 59.6%. Despite an outcry that the international community is leaving Pakistan in the lurch, this is actually a fairly high number. The FTS also reports that other disasters this year, such as the civil unrest in Kyrgyzstan or tropical storm that hit Guatemala, have only been covered to the tune of 36% and 33% respectively. But there's no denying that the international community seems less concerned with Pakistan than it was with say, Haiti. The Chronicle of Philanthropyreports that while twenty-two U.S. aid groups have raised a total of $9.9-million for Pakistan, within two-and-a-half weeks of the earthquake, 40 aid groups had brought in a total of $560-million for Haiti. (photo credit, above).

But the stakes are high. As an editorial in the New York Times last week put it:

The world, especially the United States, must not blow this one.

The editorial reminds us that Pakistan is armed with nuclear weapons, after all, and its destabilization could spell disaster. Moreover, the United States has put an awful lot of effort into suppressing Al Qaeda in the region, particularly along the border with Afghanistan. That work is easily undermined when radical Islamic charities are able to provide shelter and food ahead of the authorities or foreign aid organizations. The Pakistani Taliban has inserted itself, urging the Pakistani government not to accept aid at all, citing a need to maintain sovereignty and independence. The strategic implications (read: politics) of it all are hard to avoid. (photo credit, above left; photo credit below right)While the rhetoric that this is a "battle for hearts and minds" strikes me as overly dramatic, maintaining peace and security in Pakistan through the crisis is an unquestionable must. And to the extent that it is a battle for hearts and minds, an outpouring of support from the international community ought to do the trick. Pakistan is facing a humanitarian crisis of epic proportions. Angelina Jolie gets it. She recently donated $100,000 of her personal funds to help. You can too. But don't worry, the minimum amount is only $15.

On this day in ...... 2010(today), is our day! Well, in Argentina at least. There, el 29 de agosto is elDía del Abogado/a -- Lawyer's Day. Proclaimed back in 1958, the date chosen to commemorate the birthday of Juan Bautista Alberdi (1810-1884), a jurist, political theorist, diplomat, and noted constitutionalist. The aim was to honor the "fight for the rule of law, justice and liberty," and it was hoped that remembering Alberdi's example would remind people to "conserve fundamental teachings in order to live together peacefully." (credit for photo of La Justicia, sculpture at Buenos Aires courthouse)

Saturday, August 28, 2010

To commemorate the 5th anniversary of Hurricane Katrina's impact on the Gulf Coast of the United States, here is a quick selection of documentary and fictionalized accounts. All well worth seeing. Previous Intlawgrrls posts on Hurricane Katrina appear here and here. ►Coming Home: The Dry Storm (2009 documentary by filmmaker Michele Stephenson and the National Economic and Social Rights Initiative documenting housing rights activism by MayDay New Orleans)►Frontline: Law & Disorder (2010 documentary investigating allegations of police brutality and murder post-Katrina)►If God Is Willing and Da Creek Don’t Rise (2010 follow-up to Spike Lee's earlier documentary on Katrina; includes New Orleans’ Saints’ symbolic Super Bowl victory and impact of BP oil spill on region)►Treme (fictionalized HBO series set and filmed in post-Katrina New Orleans neighborhood known for its rich and complex cultural and political life) (See also Intlawgrrl Diane Marie Amann’s post on Treme here.)►Trouble the Water: It’s not about a hurricane. It’s about America.(Tia Lessin and Carl Deal award-winning 2008 documentary; site includes community-based activist materials)►When the Levees Broke: A Requiem in 4 Acts (Director Spike Lee’s 2006 documentary)

In the early days after the disaster, friends and colleagues asked “What does a storm have to do with human rights?” Certainly, international human rights standards cannot prevent, or provide a single effective response to, a storm or a massive oil gusher in the Gulf, toxic waste releases in Mossville, Louisiana, an earthquake in Haiti, or floods across Pakistan. But international legal standards recognize or impose obligations on state and non-state actors to respect, protect, and fulfill the human rights of individuals and groups before, during, and after such natural and man-made disasters. See, for example, the UN’s Guiding Principles on Internal Displacement.Lessons Learned?Civil and Political Rights. Katrina showed us how historical and contemporary discrimination results in racial and ethnic disparities in housing, education, and access to jobs and healthcare. We saw how minority status, internal displacement, and poverty can effectively strip individuals of their rights to vote or to participate in decision-making about rebuilding efforts. We learned that police and criminal justice systems intended to protect the security of communities can be abused or corrupted by some to turn against those same communities when an emergency occurs.Economic and Social Rights. We saw how crucial hospitals, nursing homes, clinics, and other physical and mental health facilities are to the survival of any community. The poorest suffered the effects, not only of the disaster itself, but also the loss of medical records, regular doctors’ visits, access to medicines, and mental health care as mortality and morbidity rates rose from suicide, treatable diseases, and barriers to disability access. Rental housing was priced beyond reach, insurance claims unpaid, and viable public housing demolished. Workers’ rights to decent wages and safe working conditions were ignored in some rebuilding efforts. Even obvious lessons about the implications of environmental abuse on human and other life forms seemed to remain largely unlearned—workers were exposed to toxic construction materials and survivors to toxic FEMA trailers. Now the BP oil catastrophe has exposed clean-up workers to further contaminants.Cultural Rights. Katrina also illustrated the importance of the right to participate in cultural life. Many focused on the city of New Orleans, influenced at one time or another by Native American traditions, the TransAtlantic slave trade, French colonialism, African-American traditions, Cajun traditions, Haitian traditions, jazz, blues, Catholicism, Mardi Gras, fisheries and seafood industries, and much more. These rich traditions were cultivated over generations and extended neighborhood and family networks that are recognized and to be protected under human rights norms.Another AnniversaryPerhaps not coincidentally, 28 August is the anniversary of the great March on Washington for Jobs and Freedom. Rev. Dr. Martin Luther King’s “I Have A Dream” speech at the Lincoln Memorial in Washington was a historic call for the United States to make its constitutional aspirations a reality for all Americans, including African-Americans. King saw an end to poverty and the protection of economic rights as an important aspect of his dream of justice.

But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. And so, we've come to cash this check, a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. …Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood. Now is the time to make justice a reality for all of God's children.

For many, the images of Hurricane Katrina were a resounding indication that King's dream, either with regard to racial equality or economic justice, had yet to be realized.

Human Rights in the United States: Under ReviewOn 20 August 2010, the United States released an important report on its compliance with international human rights standards. Under the UN Human Rights Council’s Universal Periodic Review (UPR) process, the U.S. will be subjected to formal human rights scrutiny on 5 November 2010. (A U.S. Department of State webpage available here provides links to the official country report, summaries of civil society consultations, and summaries of the UN process.) In preparation for this historic review, a coalition of U.S. NGOs organized by the U.S. Human Rights Network has compiled 24 reports on human rights conditions as of April 2010 available here.Five years after Hurricane Katrina, and nearly 50 years after Dr. King's speech, a quick read of these reports indicates that there’s still a great deal yet to be learned to make the full enjoyment of human rights a reality in the U.S. At least, the U.S. has begun to recognize the importance of shining the human rights light on its actions at home as well as abroad.

(We are delighted to welcome back IntLawGrrls guest/alumna Susan Harris Rimmer with a special post on the recent Australian election)

There is a website that contains all the information the rest of the world needs to know about the recent Australian election on 21 August: doesaustraliahaveagovernmentyet.com? It is a black screen with one large white word - no. Yes, we are still cheeky and irreverent. No, we no longer have a dominant two party system, and the change this is causing is painful, but hopefully good for Parliament in the long term. Yes, policy issues played out in a weird bubble during the campaign, as if the rest of the world and climate change and the financial crisis and the causes of boat arrivals of asylum-seekers simply did not exist. Most of the messages from the two major parties were negative and targeted at a few marginal seats. But we did get our youngest ever MP (at 20 years old), our first Indigenous MP, and our first Muslim MP.The fact Australia had the chance to elect its first female Prime Minister seems not to have had much impact on the way the polls played out. At least overtly. Julia Gillard (credit for photo below right) did not sweep to power on a feminist voting landslide, that much is for sure. Research before the poll suggested that 64% of women participants would choose to vote for Gillard because they are strongly influenced by Gillard’s views and priorities first and foremost, her leadership style, second and her achievements, third, before the considerations that she is the first woman PM in Australia and that she will do more for women’s issues if elected.Except they didn't. At least they didn't in the 20 odd marginal seats that counted. And the way that Julia Gillard took power from Kevin Rudd -- in a very sudden and clinical fashion -- was certainly a factor in the election, as was the deep unpopularity of two governments at the State level, New South Wales and Queensland, which are also led by women, Anna Bligh(credit for photo below left) and Kristina Keneally(credit for photo below right) .Ostensibly, the election couldn't have been more stark on women's issues at the level of representation. In one corner was a feminist and the first female PM, who was famously denigrated for being 'deliberately barren' by a fellow Parliamentarian (as best described by Kathy Lette in the UK Daily Mail). Gillard is tough and competent and resolutely cool under fire. She stated early and often that the campaign wasn't about gender, then promptly did a cover shoot for the Australian Women's Weekly.In the other corner was Tony Abbott, an uber-masculine, fitness junkie ex-novitiate with such a negative background on women's issues that activists were able to create a full advertisement by simply cutting together his previous comments. But Abbott ran a disciplined campaign with clear messages, announced a very generous paid maternity leave scheme, and gathered his wife and daughters about him at every opportunity. Abbott also managed to curb his normal enthusiasm for gaffes about women, except for saying 'no means no' to a repeated request for Gillard to debate her on economic issues. (And he kept his clothes on - Tony Abbott is famous for getting about a in very small swimming costume, known colloquially in Australia as 'budgie smugglers'. Think Putin, but cheekier).But in meaningful terms, there was no emphasis on any women's policy issues in the campaign whatsoever, neither at the domestic or international level (see the election platform calls from the women's sector). Admittedly there was almost no social policy or foreign policy either. The BBC always saves its best dry wit for its Australian reportage and their Sydney correspondent Nick Bryant gave the best analysis I've seen, despairing that the campaign was parochial, scrappy and lacked vision.So here we are, many days after the election with no end in sight, and the players now are five independents in the House of Representatives, four representing rural and regional electorates. One is a very colourful character, Bob Katter - his 'Force from the North' rural rap is a big hit on YouTube. It is unlikely that women's issues are going to get much play in what is likely to be a difficult negotiation leading to a fragile minority government. It is also likely Australia might head back to the polls.Overall? An election campaign full of sound of fury, signifying nothing? It often felt that way. Is the fact that Julia's gender did not turn the election one way or another to be celebrated? What will be the long-term impact of this election on the participation of women in public policy decision-making?For thoughtful commentary on the role of gender in the Australian election, these opinions columns by Marian Sawer and Julia Baird are well worth a read.

It's worth watching, though best watched in several segments. By filmmaker Ken Burns, it 1st aired as a documentary series on PBS, which maintains an informational website. As is common in works of the kind, the repetition of static photos (necessary given how little motion picture footage there was back in the day), coupled with folksy-Americana music, can make one a bit drowsy at times.

But stick with it. The story's a good one -- one of which this 'Grrl knew precious little.

Told well are the life journeys of 2 very different persons, at one in their passion for changing the role of women in the United States:

► Elizabeth Cady Stanton (near right), a mother, wife, and writer, loved good food and took care to keep her hair curled.

They met in 1851 in Seneca Falls, New York, where 3 years earlier Stanton had convened the 1st-ever women's rights convention. From then on, the 2 (both IntLawGrrls foremothers) worked tirelessly together for women's rights -- especially, for the enfranchisement of women.

Particularly interesting in Not for Ourselves are the moments when that last, singular goal conflicted with others. The conflict saw the women, who'd been staunch activists on behalf of abolition, oppose post-Civil War Reconstruction Amendments because they kept from women what they granted to former slaves. And as the goal of women's suffrage grew nearer, they distanced themselves from African American women in an effort to shore up support in the South. Conflict also arose between the 2 women themselves. The 1890s publication, by an ever-more-radical Stanton, of The Woman's Bible drew censure from the movement she'd started -- a movement that Anthony chose to continue to lead notwithstanding its ouster of her longtime friend and ally. As a result Anthony, alone, appears on the 1st U.S. coin depicting a woman.

Both women would pass away more than a decade before their work took form in the 19th Amendment. This film serves as a reminder of their legacy.

Friday, August 27, 2010

This month, UNHCR released a report assessing its response to three African mixed migration movements: those from the Horn of Africa (pictured left), the Great Lakes region (pictured below right), and Zimbabwe to South Africa. These flows are "mixed" because they include both refugees and labor migrants, groups that can be nearly indistinguishable both facially and legally. Mixed migration movements raise questions about the adequacy of protection categories created by international refugee law and the need to address the interaction between asylum systems and restrictive labor migration policies.

The first two movements, encompassing migrants from Ethiopia, Somalia, Rwanda, the Democratic Republic of Congo, and Burundi, often pass through Malawi and Mozambique en route to South Africa. The migration management systems in Malawi and Mozambique, both signatories to the UN and OAU refugee conventions, are struggling to cope with the migration flows. Their response has been to accommodate most refugees in camps, an approach that is bound to fail. Many of these refugees have no interest in staying in camps; indeed, some are fleeing refugee camps in Kenya and Tanzania. They have come to Malawi and Mozambique so that they can get to South Africa, where they hope to find work, family, members and possibly transit onwards to North America or Europe. And of course, while all of the migrants arriving in Malawi and Mozambique face significant protection issues during their journeys -- including inadequate access to food, water and shelter; harassment; robbery; extortion; and exploitation -- only some of them are refugees entitled to the protection of UNHCR.The report is critical of UNHCR and the International Organization for Migration for failing to engage with the "mixed migration issue" in Malawi and Mozambique, but it is difficult to know exactly where UNHCR should draw its boundaries. Should its mandate be extended to cover those who do not fall within the UN Refugee Convention definition? If not, which UN entity should bear responsibility for protecting non-refugee migrants -- the Office for the Coordination of Humanitarian Affairs, the Office of the High Commissioner for Human Rights, or even the UN Development Program or UN-HABITAT? More importantly, does it make sense to distinguish between refugees and other mixed migrants given the "poor governance and harsh economic circumstances" in their countries of origin? These flows are primarily composed of young men, the vast majority of whom are presumably seeking greater economic opportunity as well as greater political freedoms.These questions are no more easily resolved in the case of Zimbabwean migration flows, which are characterized by increasingly blurred lines between labor migrants and refugees. The report suggests that most Zimbabwean migrants fall somewhere in between, in a category the authors describe as forced or 'survival' migration.The migration management system in South Africa further contributes to the blurriness. In 2009, South Africa registered over 220,000 new asylum seekers (most from Zimbabwe). Part of the reason for these extremely high numbers is that the easiest and often only way for migrants to stay and work in South Africa is to apply for refugee status. Because the lawful immigration channels for non-refugees are inadequate to address the demand for labor migration, most migrants turn to the asylum system. Unsurprisingly, South Africa's asylum system has become overwhelmed; it suffers from severe backlogs and exceptionally poor quality decisions. (credit for map of South Africa above left).These are problems faced by immigration systems around the world; as borders become tighter, pressure on asylum processes increases. It is folly to imagine that mixed migration flows can be stopped through higher fences. Those desperate for a better life will find a way around them. We might do better by designing programs that provide safe and legal means for labor migration, recognizing the humanity in the search for greater opportunity, whether economic, political, or both.

On this day in ...... 1952, in Wassenaar (right), a suburb of The Hague, Netherlands, negotiators who'd been at work for 5 months completed draft agreements by which West Germany agreed to pay reparations over a period of 14 years, totaling 3.45 billion Deutsche marks, or US $822 million, "basically in goods, to Israel and world Jewish organizations in compensation for Nazi antisemitic acts" in the 1930s and 1940s. (photo credit)The New York Times further reported that under the agreement, West Germany was to "improve its machinery for individual restitution." Israel was to establish a trade mission in Bonn so that the agreement could be administered.

Thursday, August 26, 2010

Last week, the Wildlife Conservation Society (WCS) reported that coral reefs off the coast of Indonesia are being devastated by unusually warm sea waters. In what is being called "one of the most rapid and destructive coral bleaching events on record" large swaths of coral off the coast of Sumatra have died.Climate change poses a serious threat to coral reefs. Indeed, the Intergovernmental Panel on Climate Change (IPCC) devoted much of the marine ecosystems chapter of its 2007 Report to coral reefs. The International Union for the Conservation of Nature (IUCN) lists many species of coral on its "red list" of threatened species.Corals reefs are some of the most diverse ecosystems on earth. They occupy only one percent of the world's ocean surface but provide a home for 25 percent of all sea life - including fish that millions of people rely on for food.Ordinarily coral reefs are brightly colored because coral lives in a symbiotic relationship with algae. Coral bleaching occurs when environmental stresses like excessive heat cause coral to expel the algae with which they normally coexist. When this occurs, the coral reefs turn a dull and lifeless grey. If the bleaching is severe enough, the coral die from a lack of the energy and oxygen that the algae provide.Not only does the increased water temperature associated with global warming jeopardize coral survival, so does the increased ocean acidification caused by excess atmospheric carbon dioxide being absorbed by the world’s oceans. Reefs protect the coastlines of many countries, especially islands, from storm surges. Thus, coral reef losses put small island states, already threatened by rising sea levels associated with climate change , in further jeopardy.Aside from their coast-protecting and biodiversity promoting utility, coral reefs are also breathtakingly beautiful. The loss of that beauty compounds the biological and ecological losses. If the current rate of loss continues, we may lose 70% of the world's coral reefs in the near future.This past May, Indian Ocean water temperatures weresignificantly warmer than usual (about 7 degrees Fahrenheit above average.) The stress associated with warmer water is killing what had been some of the most biodiverse coral reefs in the world. Indeed, the WCS reports that reefs are up to 80 percent bleached, with more colonies expected to die off in the coming monthsThe loss of these coral reefs (which incidentally were either unaffected or recovering well from the 2004 Indian Ocean tsunami) is a devastating blow to the region, and the world. Not only is the loss of biodiversity a tragedy in itself, but it comes as a tremendous loss to the regions inhabitants, many of whom are impoverished and dependent on the reef for their food and livelihood.And, unfortunately, rather than a one-off occurrence, this is a harbinger of things to come. As climate change unfolds, the rate and nature of environmental changes will exceed the ability of coral to adapt. The steady warming and acidification of the world’s oceans will pose a threat to reefs around the world, and to the communities that depend on them.Dr. Caleb McClennen, WCS-Marine Program Director, described the coral die-off as “another unfortunate reminder that international efforts to curb the causes and effects of climate change must be made if these sensitive ecosystems and the vulnerable human communities around the world that depend on them are to adapt and endure.”

On this day in ...... 1969, C-150, an Omnibus Bill that revised Canada's Criminal Code to decriminalize sodomy, went into effect. The entry into force marked the end of a campaign touched off by the 3-2 Canadian Supreme Court judgment in Klippert v. The Queen (1967), which dismissed an appeal lodged by a gay man sentenced to an indefinite period of preventive detention on as "a dangerous sexual offender." Soon after the bill was introduced, and it became law after its parliamentary sponsor, Pierre Trudeau -- who'd defended the bill in a televised interview by saying: "There's no place for the state in the bedrooms of the nation." -- became Prime Minister. The legislation Canada's laws with regard to not only to this aspect of sexual conduct, but also to abortion, contraception, and other matters.

Wednesday, August 25, 2010

It's IntLawGrrls' great pleasure to welcome Dr. Betsy Baker (left) as today's guest blogger.Betsy is an Associate Professor and Senior Fellow for Oceans and Energy, at the Institute for Energy and the Environment of Vermont Law School, home institution of IntLawGrrl Stephanie Farrior. Betsy teaches in the comparative law and international organizations curriculum, with emphasis on her area of special expertise -- the environment, law of the sea, and the Arctic. She served as a 2009-2010 Research Fellow at Dartmouth College's Dickey Center for International Understanding and Institute of Arctic Studies. She's also been a member of the science crew of the Healy, the U.S. Coast Guard's newest polar icebreaker, on deployments for State Department-sponsored mapping of the United States' Extended Continental Shelf in the Arctic Ocean. Betsy operates her own blog, entitled Arctic Mapping and the Law of the Sea.She earned doctoral and master of laws degrees from Christian-Albrechts-Universität zu Kiel; while in Germany, she worked as legal historian at the Heidelberg Academy of Sciences and was affiliated with the Max Planck Institute for Comparative Public Law and International Law. Betsy, who clerked for Judge John T. Noonan, Jr., U.S. Court of Appeals for the Ninth Circuit, also holds a J.D. from the University of Michigan and B.A. from Northwestern University. She was a Lecturer on Law and Assistant Dean for the Graduate Program and International Legal Studies at Harvard Law School before joining Vermont's faculty in 2007.In addition to these SSRN-posted publications, Betsy's scholarship includes examinations of proposals for Canadian-US cooperation in maritime issues and the law-science interface in environmental treaties and legislation. In her guest post below, she considers the newly announced U.S. ocean policy in light both of international law and the oil spill off the Gulf of Mexico.Heartfelt welcome!

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

International lawyers measure change over the course of human events, believing we might even shape both the change and the events. Geologists think differently.In geologic time 65 years barely register. In international law they take us from the September 28, 1945, Proclamation on the Continental Shelf, issued by President Harry S. Truman, to the July 19, 2010, Executive Order No. 13547 on Stewardship of the Ocean, Our Coasts and the Great Lakes, issued by President Barack Obama. Delayed a few weeks by the fatal explosion and aftermath at the Deepwater Horizon oil rig in the Gulf of Mexico (prior IntLawGrrls posts), the latter order adopts a task force's recommendations, establishes a National Ocean Council, and proclaims a national ocean policy.At long last the United States has a national ocean policy. Will it make a difference? Did the Truman Proclamation? Why consider documents of domestic executive power in a forum for international law?For one, the Truman Proclamation memorialized this country’s once and future reliance on hydrocarbons and, for better or worse, it has shaped international law. It introduced the idea that the continental shelf

may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it,

and called for settling overlapping shelf claims by “equitable principles.” Via the 1969 judgment of the International Court of Justice in North Sea Continental Shelf, the 1945 Proclamation led negotiators to include the conept of “natural prolongation” in how to define the continental shelf under Article 76(1) of the U.N. Convention on the Law of the Sea. Geoscientists worldwide have learned to work with this legal construct and non-geologic definition of the shelf as they gather data that undergird national submissions to the Commission on the Limits of the Continental Shelf.Other parts of the Truman Proclamation have been less influential in international law. Perhaps, post-Deepwater Horizon, their time has come.Filtered through intervening years and changed understandings of resources (not just for exploitation any more) and their role in larger social or eco-systems, the Proclamation might be applied in powerful new ways. It states:

[S]elf-protection compels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources.

Yes, the focus is on utilization, and the environment goes unmentioned, but this is not surprising. It was, after all, only 1945.If international environmental and ocean law have accomplished anything since 1945, they’ve made clear the duty of states. To quote Article 192 of the Law of the Sea Convention:

States have the obligation to protect and preserve the marine environment.

The Convention further calls for: protecting fragile ecosystems/endangered species habitats, in Article 194; contingency plans against pollution, in Article 199; and monitoring risks of pollution and assessing potential effects of activities on the marine environment, in Articles 204 and 206. Article 208 requires states to adopt rules to “prevent, reduce and control pollution of the marine environment arising from or in connection with seabed activities subject to their jurisdiction and from artificial islands, installations and structures under their jurisdiction,” which shall be “no less effective than international rules, standards and recommended practices.” As IntLawGrrl Rebecca Bratspies has posted, regulations promulgated pursuant to the United States' Outer Continental Shelf Lands Act require shutdown of offshore operations if there exists a

threat of serious, irreparable or immediate harm or damage to life ... or to the marine, coastal or human environment.

To quote the Truman Proclamation, what “activities off our shores” are necessary today for resource use in the ocean’s subsoil and seabed? What future uses should we promote? How to define “self-protection”?In issuing his Stewardship order last month, President Obama answered these questions by embracing one big idea: coastal and marine spatial planning, defined in § 3(b) of that Executive Order as

a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas.

This big idea lets stakeholders decide, region by region, what to allow off their shores. In this and other ways, the national ocean policy reflects developments in international law since the Truman Proclamation.The Executive Order states that it is U.S. policy to “support sustainable, safe, secure and productive access to, and uses of the ocean, our coasts, and the Great Lakes” and to “exercise rights and jurisdiction and perform duties in accordance with applicable international law.” The United States is to promote this policy by “pursuing ... accession to the Law of the Sea Convention.”The order doesn’t mention the precautionary approach. But the Final Recommendations of the Interagency Ocean Policy Task Force, which the order adopts, do. Specifically, the Recommendations list the precautionary approach as one of the “Principles” that will guide “management decisions and actions affecting the ocean” (p. 15) and planning for achieving coastal and marine spatial planning (p. 49). Principle 15 of the Rio Declaration is quoted both times, for example:

Decision-making will also be guided by a precautionary approach as reflected in the Rio Declaration of 1992, which states ... ‘[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’

Appendix C of the Recommendations summarizes public comments about the “precautionary approach” and “precautionary principle” (prior IntLawGrrls posts), the latter of which the United States has consistently declined to apply. To cite one example, the temporary ban on commercial fishing in the 2009 Fishery Management Plan for the U.S. Arctic invoked the precautionary approach.The Recommendations contain another “principle”; that is, that the country

should cooperate and provide leadership internationally in the protection, management, and sustainable use of the world’s ocean [and] coastal regions, ... in keeping with applicable conventions and agreements, and with customary international law, as reflected in the Law of the Sea Convention.

(p. 17) In implementing the policy, the new National Ocean Council is to

(p. 22) These are just some references to international law and cooperation in the national ocean policy and the Recommendations.The United States has helped shape in the international arena some of the concepts that have in turn been adapted for national use in the new U.S ocean policy -- sustainability, coastal and marine spatial planning, large marine ecosystems, and ecosystem-based management among them. Whether that policy will shape international law in the next 65 years, to the extent the Truman Proclamation has in the last, remains to be seen.First, we need to work on how the new policy will shape our response to the Deepwater Horizon incident.

In 1972 the small Derry town of Claudy was devastated by the explosion of three car bombs by the IRA, causing the death of nine people and injuring thirty more. Information was made available shortly afterwards to the Royal Ulster Constabulary (RUC) suggesting the involvement of a Catholic priest, Fr James Chesney, in the bombings. Perhaps understandably, given the incredibly volatile situation existing in Northern Ireland at the time, a political approach was made to the Roman Catholic Church informing them of the suspicions against Fr Chesney. The Church's response was to speak to F. Chesney (who, it appears, denied involvement), and move him to a parish in Donegal within the Republic of Ireland. Fr Chesney, who died in 1980, was never again placed in a parish in Northern Ireland, the police investigation into his involvement was never followed up, and nobody has ever been charged in relation to the bombing of Claudy.Yesterday the Police Ombudsman for Northern Ireland released his report in to the handling of the Claudy investigation by the RUC. Working within his remit--of considering whether there was police misconduct--the Ombudsman concluded that the investigation was deficient for its failure to pursue a line of questioning and investigation that would have either confirmed suspicions or resulted in Fr Chesney being eliminated from the investigation. This report has resulted in accusations of a Roman Catholic 'cover up' of Fr. Chesney's involvement and denial of same by the Cardinal of All Ireland, Fr. Séan Brady (Irish Times editorial). It has also resulted in an apology from the British government to the people of Claudy for the deliciency of the investigation and raised questions, as I noted here, of compliance with the investigation obligation in Article 2 (right to life) of the European Convention on Human Rights.It is to be assumed that moving Fr Chesney to a parish in Donegal did not, of itself, prevent the issuance of an arrest warrant against him. Indeed, although there is quite a substantial amount of criticism of the Church's role in this investigation (perhaps primarily because of revelations in Ireland about the extent to which the Church hierarchy covered up clerical child sex abuse), it does seem to me that the Church did not substantially impede police investigation. Whether they would have done so had the RUC determined to arrest Fr Chesney (and, indeed, whether the Irish government would have extradited him to Northern Ireland if charged) is a different question in relation to which only conjecture is possible.What is really striking about the revelations in the Ombudsman's report is the extent to which politics played an important--if not determinative--role in the manner in which atrocities in Northern Ireland were investigated. Unlike in cases of collusion with Loyalist/Unionist paramilitary organisations which I have written about here on IntLawGrrls before, the decision about Claudy seemed to be motivated not by a desire for a cover-up but rather by an appreciation of the immense ramifications arrest of a Catholic priest for IRA involvement would have had in 1972 Northern Ireland. Indeed, the Ombudsman himself noted the possible political motivations for this course of action yesterday.The reality, however, is that however and why-ever motivated the decision to cut off an important and seemingly viable line of investigation into the bombing was a flagrant breach of the rights (and, indeed, the needs) of the deceased and their families; families that, as evidenced by their interaction with the media yesterday, remain deeply and profoundly affected not only by their loved ones' deaths but also by the RUC's failure to fully pursue the perpetrators of the attack.

Tuesday, August 24, 2010

Despite global warming, the Gulf Oil spill, and the high price of gasoline, Americans remain obsessed with the idea of hitting the open road. But if you've ever driven off into the sunset with young ones, you know the call to adventure can quickly dissolve into a back seat screaming match or invoke the one question guaranteed to put any parent in a straight jacket: "Are we there yet?" Nowadays, the modern parent has all sorts of sophisticated distractions--from iPods to personal DVD players--to help keep the little tykes from suffering the dreaded, automobile-induced boredom blues. But in my day (you know, back when horse-drawn carriages shared the open road :) our pleasures were more modest. License plate bingo was a great way to wile away the time as we headed out to Bear Mountain or other wild places in New York state. For the uninitiated, here is a short but sweet explanation of the game.Driving on the California road the other day, en route to my own driving adventure, I started to think about the way in which globalization might change that childhood game of license plate bingo -- if Mexico has its way.When the North American Free Trade Agreement (NAFTA) came into existence in 1994, it contained a small provision allowing trucks loaded with goods from Canada and Mexico free access to U.S. highways, provided they followed all U.S. rules and regulations -- including safety regulations. For businesses, whether Canadian, Mexican or American, this represents a healthy cost savings. No longer would time be lost transferring goods from a Mexican truck onto a U.S.-owned truck at the border; breakage would be reduced, as would time to market; and it would be easier to keep track of inventory (less opportunity for goods to "fall off a truck," for example.) The measure seemed relatively uncontroversial on its face, and indeed for Canada it was. The U.S. has for years allowed Canadian trucks onto U.S. highways. Despite the Agreement to allow Mexican trucks onto highways in states near the Mexican border by December 1995, and throughout the United States by January 2000, however, Mexican trucks have been barred.In 2001, Mexico filed a NAFTA Chapter 20 state-to-state dispute settlement claim against the United States arguing the ban treats U.S. truckers more favorably than Mexican truckers, which violates NAFTA’s national treatment provision (Article 1202); moreover, the ban favors Canadian truckers over Mexicans, violating NAFTA's most favored nation obligation (Article 1203). The panel in In the Matter of Cross-Border Trucking Services took issue with the United States' ban because such a complete restriction did not permit those Mexican trucking companies that did meet U.S. safety regulations access to U.S. highways. In other words, all Mexican trucks and truckers were banned even if they had exemplary health and safety records. The panel concluded:

It also is clear that the United States was well aware during NAFTA negotiations that the Mexican truck regulatory system was deficient in many respects in the U.S. view, and that many changes would be required to improve it significantly. The United States and Mexico have undertaken a cooperative program aimed at improving Mexico’s truck and driver regulatory system. While the United States contends that insufficient progress has been made to lift the moratorium, the U.S. obligations under [NAFTA] are not conditioned on a certain level of progress by Mexico in improving Mexico’s truck safety regulatory system.It is unclear when, if ever, the United States will be satisfied that the Mexican regulatory system is adequate to lift the moratorium with respect to all Mexican providers of trucking services.

“Mexico’s retaliation against U.S. pork will have negative economic consequences for America’s pork producers,” said NPPC President Sam Carney, a producer from Adair, Iowa. “We are extremely disappointed that our top volume export market has taken this action, but we’re more disappointed that the United States is not living up to its trade obligations.”

What's so fascinating about this cat-and-mouse play between the U.S. and Mexico is the way in which it has changed the terms of the game. The United States may be considerably more wealthy and powerful than Mexico, but NAFTA offers up an opportunity to level the playing field in some way. Mexico is savvy enough to pit one group of U.S. stakeholders against another (on the other side of the controversy are The Teamsters who would lose out on well-paying jobs if their truckers were displaced by Mexicans). With mid-term elections fast approaching, the Mexican trucking crisis takes on political overtones. Given Obama's strong emphasis on export-led growth to leverage the United States out of the recession, taking a hit on a major export commodity will hurt. Or perhaps we'll begin to see some movement on this intractable issue.And maybe even the venerable old game of license plate bingo will have to change to accommodate Mexican trucks.